Raveendranathan vs Sajina Kannoli
2021 Latest Caselaw 20601 Ker

OP(C) NO. 1698 OF 2021
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                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                         THE HONOURABLE MR.JUSTICE V.G.ARUN
          TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                              OP(C) NO. 1698 OF 2021
 AGAINST THE ORDER TO RETURN THE APPEAL BASED ON THE DEFECT NOTED BY THE
      REGISTRY DATED 08.09.2021 & 18.09.2021 IN THE UNNUMBERED APPEAL
PETITIONER/APPELLANT:

              RAVEENDRANATHAN,
              AGED 70 YEARS
              S/O.MANDODI UNICHUNDAN @ APPUKKUTTAN, NADUVATTOM AMSOM AND
              DESOM, BEYPORE P.O., KOZHIKKODE-673 015, AT PRESENT RESIDING
              AT RAVI OIL MILLS, MATHOTTOM, ARAKKINAR P.O., KOZHIKODE-673
              028.
              BY ADVS.
              B.G.BHASKAR
              BIJU ABRAHAM


RESPONDENTS/RESPONDENTS:

      1       SAJINA KANNOLI,
              AGED 52 YEARS
              W/O.LATE DILEEP KUMAR, MANDODI HOUSE, NADUVATTOM AMSOM,
              BEYPORE P.O., KOZHIKKODE-673 015.
      2       ATHUL MANDODI DILEEP,
              AGED 25 YEARS
              S/O.LATE DILEEP KUMAR, MANDODI HOUSE, NADUVATTOM AMSOM,
              BEYPORE P.O., KOZHIKKODE-673 015.
      3       ANAGH MANDODI DILEEP,
              AGED 21 YEARS
              S/O.LATE DILEEP KUMAR, MANDODI HOUSE, NADUVATTOM AMSOM,
              BEYPORE P.O., KOZHIKKODE-673 015.

      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 1698 OF 2021
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                                 JUDGMENT

Dated this the 05th day of October, 2021

The grievance highlighted in this Original

Petition is regarding the manner in which an appeal

memorandum and interlocutory application was

returned without numbering by the District Court,

Kozhikode. The appeal memorandum and the

interlocutory application were returned noting the

following defects;

i. The full address of the parties are not

furnished in the cause title of the appeal

memorandum and the interlocutory application.

ii. The Section under which the appeal is

filed and the court fee paid, is not mentioned.

iii. The decree copy is not produced.

2. Thereupon, the learned Counsel for the

appellant gave a detailed explanation as under;

Address of the parties is not to be shown in

the cause title, but only in the body of the appeal OP(C) NO. 1698 OF 2021

and 14 of the Civil Rules of Practice. Address of

the parties to an application need not be shown

at all. Only the rank of the parties is required to

be shown vide Form 13 Rule 39 of Civil Rules of

Practice. The section of the court fees has been

added. The High Court has laid down as early as

on Reetha v. Paul and others [2014 (4) KHC

599] that the decree copy is not necessary for

filing the appeal. The decree will be prepared by

the lower court only some time after the

judgment is pronounced. It has been stated in

the appeal memo that the decree will be

produced as and when it is obtained as per the

application already made. Please see Order 41

Rule 1 as amended in 1976. Order XX Rule 6A.

The learned Counsel also requested to post the

matter in open court, if clarification is required.

3. The explanation with respect to defect

Nos.2 and 3 were accepted and the appeal OP(C) NO. 1698 OF 2021

memorandum was returned again, noting that the

first defect is not cured. Hence, this Original

Petition.

4. The learned Counsel referred to Rule 12 of

the Civil Rules of Practice, stipulating that the

memorandum of appeal shall be headed with a

cause title setting out the name of the courts to

and from which the appeal is brought, the names of

the parties, separately numbered and described as

appellants and respondents, and also the full cause

title of the suit or matter in the lower courts as in

Form No.2. The other relevant rule, viz, Rule 15 is

extracted hereunder;

"15. Names, etc., of parties. -- The full name, age,

residence, address and description of each party, and

if such is the case, the fact that a party sues or is

sued in a representative character, shall be set out at

the beginning of the plaint, original petition, or

memorandum of appeal as in Form No. 5 but need

not be repeated in the subsequent proceedings in the OP(C) NO. 1698 OF 2021

same suit, appeal or matter. The description shall

include the surname, father's, mother's, husband's or

karanavan's name as the case may be and such

other particulars as may be necessary to identify the

person. This applies also to parties subsequently

added."

A conjoint reading of Rules 12 and 15 and scrutiny

of Form Nos.2 and 5 makes it abundantly clear that

in the cause title of the appeal memorandum, only

the name of the parties, described as plaintiffs and

defendants or petitioners/respondents, as the case

may be, need be shown. The full name, age,

residence, address and description of each party has

to be set out at the beginning of the memorandum

of appeal as in Form No.5. Being so, I find merit in

the contention that defect No.1 was noted without

knowing the distinction between the requirements

under Rules 12 and 15 of the Civil Rules of Practice.

As contended, when the explanation to a defect calls

for the interpretation or application of a legal OP(C) NO. 1698 OF 2021

provision, it would be appropriate to given an

opportunity to the Counsel to clarify the position by

addressing the court. The explanation regarding

defect No.2 and 3 having been accepted, I do not

intend to delve further, though there is substance in

the contention that the casual manner in which the

defects were noted should be deprecated. Needless

to say that defect No.3, regarding non-production of

decree copy, ought not have been raised in view of

the judgment in Reetha (supra). As far as the

interlocutory application is concerned, Rule 39

leaves no room for doubt that the cause title is to be

drawn up as provided in Form No.13 and only the

names and ranks of the applicants need be shown.

5. Having heard the learned Counsel and

having carefully scrutinized the relevant provisions

of the Civil Rules of Practice, I am convinced that

the explanation is liable to be accepted and the

appeal and the interlocutory application, numbered. OP(C) NO. 1698 OF 2021

In the result, the Original Petition is allowed by

setting aside the objection. The appeal and

interlocutory application shall be numbered on

representation. The petitioner is granted 10 days

time for representing the appeal.

Sd/-

V.G.ARUN

JUDGE NB/5-10 OP(C) NO. 1698 OF 2021

APPENDIX OF OP(C) 1698/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE APPEAL MEMO WITH THE ENDORSEMENTS DATED 08.09.2021 AND 18.09.2021 MADE BY THE DISTRICT JUDGE, KOZHIKKODU.

EXHIBIT P2 A TRUE COPY OF THE INTERLOCUTORY APPLICATION IA NO.1/2021 IN UNNUMBERED APPEAL MEMORANDUM OF 2021, ON THE FILES OF DISTRICT COURT, KOZHIKKODU, RETURNED ALONG WITH THE APPEAL MEMO.

RESPONDENT'S EXHIBITS: NIL

True Copy P.A to Judge